An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-619


Filed: 1 June 2004


         v.                        Durham County
                                No.    99 CRS 56226


    Appeal by defendant from judgment entered 19 November 2001 by Judge David Q. LaBarre in Durham County Superior Court. Heard in the Court of Appeals 3 May 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Stacey A. Phipps, for the State.

    Brannon Law Firm, P.L.L.C., by Anthony M. Brannon, for defendant-appellant.

    ELMORE, Judge.

    On 6 October 1999, defendant pled guilty to obtaining property by false pretenses. Pursuant to the terms of the plea arrangement, the trial court imposed a suspended sentence of eight to ten months and placed him on supervised probation for twenty-four months. The trial court ordered defendant to serve an active term of thirty days and to pay $1,500.00 in restitution, $200.00 in attorney's fees and $111.00 in costs. Defendant signed the judgment to indicate that he had “received a copy of this judgment which contains all of the conditions of [his] probation and [he] agree[d] to them.”    On 28 March 2001, defendant's probation officer filed a violation report which alleged that defendant had violated the “monetary condition of probation” and a “special condition of probation.” At the probation violation hearing on 19 November 2001, the State introduced evidence that defendant was $1,264.00 in arrears on his original obligation of $1,811.00. Larry Watkins, defendant's probation officer, testified that defendant had made no payments on the monetary condition of probation. Mr. Watkins further testified that defendant had tested positive for marijuana in Georgia on 29 September 2000, 5 January 2001, 18 January 2001, and 1 February 2001. Defendant, who was proceeding pro se, conducted the following cross-examination of Mr. Watkins:
        THE DEFENDANT: Knowing that you didn't know my case, why wasn't I contacted with you guys, and I left several messages with the supervisors?


        THE COURT: Overruled.

        THE DEFENDANT: That's all I had to ask him.

        THE COURT: You can come down. Is that all for the State?

The State then rested its case, and defendant informed the trial court that he wished to testify.
    Defendant initially testified that he was never tested for drugs in Georgia, but he subsequently testified to being tested for drugs on 3 January 2001. He denied having been tested on the three other dates to which Mr. Watkins had testified. While defendant acknowledged that he owed restitution and had made no payments,defendant claimed he did not know the amount and had been “calling the State of North Carolina constantly” because he did not know how much he owed. He admitted that he was working during that period and that he never went back to the office of his probation officer to find out the amount of money which he was obligated to pay. In his final statement to the trial court, defendant informed the trial court that he “would like to be able to pay that fine, Your Honor, whatever the restitution that I owe.”
    The trial court found that defendant had violated both the monetary condition of probation and the special condition of probation that he not use any illegal drug or controlled substance. In addition, the trial court found that defendant had “violated each condition willfully and without valid excuse; and each violation occurred at a time prior to the expiration or termination of the period of the defendant's probation.” After concluding that defendant had violated a valid condition of probation and that continuation was not appropriate, the trial court revoked defendant's probation and activated his sentence. From the trial court's judgment, defendant appeals.
    Defendant first argues the trial court erred by not allowing him to cross-examine Mr. Watkins. He erroneously claims “the trial court cut [him] off in mid-sentence.” The record clearly shows that defendant completed his question and that the trial court overruled the State's objection. The trial court did not limit defendant's opportunity to cross-examine Mr. Watkins. Defendant did not follow up on his question and failed to object when thetrial court allowed Mr. Watkins to be dismissed. The trial court properly exercised its discretion and dismissed the witness when defendant failed to pursue his cross-examination. See N.C.R. Evid. 611; State v. Coffey, 326 N.C. 268, 290, 389 S.E.2d 48, 61 (1990). This assignment of error is overruled.
    Defendant next contends there was insufficient evidence to support the trial court's finding that he had willfully and without lawful excuse violated the conditions of probation. He argues he presented multiple justifiable excuses for his non-compliance. Defendant's argument is not persuasive.
    “All that is required to revoke probation is evidence satisfying the trial court in its discretion that the defendant violated a valid condition of probation without lawful excuse.” State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987). The breach of any one condition is sufficient grounds to revoke probation. State v. Seay, 59 N.C. App. 667, 670-71, 298 S.E.2d 53, 55 (1982), appeal dismissed and disc. review denied, 307 N.C. 701, 301 S.E.2d 394-95 (1983). When a probation revocation hearing is based upon a defendant's failure to pay a fine or restitution, which was a condition of his probation, the defendant has the burden of offering “evidence of his inability to pay money according to the terms of the [probationary] judgment.” State v. Williamson, 61 N.C. App. 531, 534, 301 S.E.2d 423, 426 (1983).
    While defendant presented some evidence for his failure to pay, the State's evidence and portions of defendant's own evidence contradicted his testimony. Although he asserted he did not knowthe amount which he owed, he admitted that he never went back to the office of his probation officer to find out the amount and conceded he made no payments. His claim of ignorance as to the amount owed is belied by his signature on the judgment that contained the terms of his probation and the amounts which he owed. Defendant testified that he was working during the relevant time period. He told the trial court that he “would like to be able to pay that fine . . . whatever restitution” he owed, which further supports the inference that he had the ability to comply.
    In its judgment and commitment upon revocation of probation, the trial court found “[a]fter considering the record . . . , together with the evidence presented by the parties and the statements made on behalf of the State and the defendant,” that defendant had violated the conditions in paragraph one (the monetary condition of probation) and paragraph five (special condition of probation) of the violation reports. The trial court further found that defendant had violated the condition “willfully and without valid excuse[.]” These findings were sufficient to show that the trial court had considered and evaluated defendant's testimony and evidence. On the basis of this evidence and other testimony, the trial court in its discretion determined that defendant violated a valid condition of probation without lawful excuse. See Tozzi, 84 N.C. App. 517, 353 S.E.2d 250. Accordingly, we affirm the trial court's revocation of defendant's probation and activation of the suspended sentence.
    Affirmed.    Judges TIMMONS-GOODSON and CALABRIA concur.
    Report per Rule 30(e).

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